State Recognition
Introduction
- Personality and Statehood in International Law
- Since international law is primarily concerned with the rights and duties of states, it
is necessary to have a clear idea of what a state is, for the purposes of international
law.
- The 1933 Montevideo Convention on Rights and Duties of States provides in
Article 1:
- The State as a person of international law should possess the following
qualifications:
a. A permanent population;
b. A defined territory;
c. Government;
d. Capacity to enter into relations with other States
Permanent Population:
- The criterion of a ‘permanent population’ is connected with that of territory and
constitutes the physical basis for the existence of a state. For this reason alone,
Antarctica, for example, cannot be regarded as a state.
- On the other hand, the fact that large numbers of nomads are moving in and out of
the country, as in the case of Somalia, is in itself no bar to statehood, as long as there
are a significant number of permanent inhabitants.
Defined Territory:
- The control of territory is the essence of a state. This is the basis of the central
notion of ‘territorial sovereignty, establishing the exclusive competence to take
legal and factual measures within that territory.
- What is included in Territory?
- It is important to note that the concept of territory is defined by geographical areas
separated by borderlines from other areas and united under a common legal system
(e.g. East and West Pakistan before the secession of Bangladesh in 1971). It includes
the air space above the land (although there is no agreement on the precise upper
limit) and the earth beneath it, in theory, reaching to the centre of the globe. It also
includes up to twelve nautical miles of the territorial sea adjacent to the coast.
Government:
- Effective control by a government over territory and population is the third core
element which combines the other two into a state for the purposes of international
law.
- The mere existence of a government, however, in itself does not suffice, if it does
not have effective control but the requirement of effective control over territory is not
always strictly applied; a state does not cease to exist when it is temporarily deprived
of an effective government as a result of civil war or similar upheavals.
Capacity to enter into relations with Other States:
- The last criterion (d) in the Montevideo Convention suggested by the Latin
American doctrine finds support in the literature but is not generally accepted as
necessary. The Restatement (Third) of the American Law Institute, however,
basically retains this criterion, although with certain qualifications:
- “An entity is not a state unless it has competence, within its own constitutional
system, to conduct international relations with other states, as well as the political,
technical, and financial capabilities to do so.”
Recognition of State and Government in International Law
- Recognition is one of the most difficult topics in international law. It is a confusing
mixture of politics, international law and municipal law. The legal and political
elements cannot be disentangled; when granting or withholding recognition, states are
influenced more by political than by legal considerations, but their acts do have legal
consequences.
- Another reason why recognition is a difficult subject is because it deals with a wide
variety of factual situations; in addition to recognition of states and governments,
there can also be recognition of territorial claims, the recognition of belligerency or of
insurgents, the recognition of national liberation movements, such as the Palestine
Liberation Organization.
- Recognition is also seen as a political and diplomatic function (India recognised
Bangladesh as a separate state on 6-12-1971 while it did not become independent
until 16-12-1971, and Pakistan didn’t recognise it till 1974)
Categories of Recognition:
- Recognition can be categorized into the following:
- To States,
- To Government
- To Disputes
Definition:
- According to Prof L. Oppenheim:
- “In recognizing a state as a member of the international community, the existing
States declare that in their opinion the new state fulfills the conditions of statehood as
required by international law”.
Theories of Recognition:
- There are two theories pertaining to the nature of recognition.
1. Constitutive theory
2. Declaratory or Evidentiary theory
Constitutive Theory:
- According to this theory, when the existing states recognize the new state, the state
comes into existence. It means the new state does not come into existence after
getting independence but after getting the consent of the existing states.
- Exponents: Prof. Oppenheim, Hegel
Criticism:
- Article 3 of the Montevideo Convention 1933 says:
- “The political existence of the state is independent of recognition by other States”
- Acceptance of Constitutive Theory means that a State exists for some states (which
have granted recognition) and does not exist for others. This situation shows that
recognition is not conclusive proof for the existence of a state.
Declaratory or Evidentiary Theory
- According to this theory, a state becomes the international person after fulfilling
essential conditions of statehood. It does not have to wait for recognition by other
states to prove its existence.
- According to the followers of this theory, the recognition by the existing states is
merely a formal acknowledgment of the statehood and not the condition.
- According to Prof. Hall:
- “A state enters into the family of nations as of right when it has acquired the
essential attributes of statehood”.
- Charter of the Organization of American States:
- “The political existence of the state is independent of recognition by other states.”
- The practice of states:
- In modern times international personality does not depend upon recognition.
- For instance:
- The USA in 1977 and UK in 1980 have expressed that recognition is no more
important.
Criticism:
- This theory has also been criticized because it is not correct that in all cases the
existing fact shall imply the statehood, rather sometimes the statehood may be
constitutive.
Modes of Recognition
- There are two modes of recognition, which may be given;
- De facto Recognition
- De jure Recognition
De facto Recognition:
- De facto recognition implies that there is a doubt as to the permanence and viability
of the concerned state or the government. De facto recognition involves a hesitant
position by the recognizing State, an attitude of wait and sees, which is usually
followed by de jure recognition.
Reasons behind de facto recognition:
a. Stability:
- According to Prof. Oppenheim:
- “De facto recognition implies that in the view of the recognizing state the new
government though independent does not possess the sufficient stability to fulfill its
international obligations”
b. To Establish Relations:
- In the view of Judge Lauterpacht:
- “De facto recognition shows that the recognizing state wants to establish its
relations with the new government without establishing diplomatic relations”.
c. Easy Withdrawal:
- As marked by Prof. Oppenheim:
- “De facto recognition is liable to be withdrawn if the certain requirement of
recognition fails to materialize”. Example USA De-facto Recognition to china
De Jure recognition:
- When an existing state considers that the new state is capable of possessing all the
essential attributes of statehood with stability and permanency and it commands the
general support of the population, de-jure recognition is granted.
- It may be given instantly without prior de-facto recognition. Example: Israel
recognized by USA
- Practice:
- Prof H.A Smith:
- Stability
1. Stability of Government and Territory
Explanation:
Prof. Smith believed that a government must have firm and effective control over its
territory before it is recognized de jure. This means:
The government must not be provisional or temporary.
It must be able to enforce law and order within its borders.
There should be no ongoing civil war or external military occupation threatening its
survival.
2. Support of the People (Popular Sovereignty)
Explanation:
Recognition should only be granted when there is evidence that the government
enjoys the general consent of the population. Prof. Smith placed significant weight
on the principle of self-determination and legitimacy.
Indicators of Support May Include:
Participation in elections or referenda
Absence of widespread civil resistance
National unity and internal legitimacy
3. Willingness and Capacity to Fulfill International Obligations
Explanation:
The government must be able to enter into international relations, honor treaties,
and abide by international law. Prof. Smith highlighted this to ensure the new state
behaves responsibly in the global arena.
Key Points:
Ability to negotiate and sign international treaties
Commitment to uphold human rights, international norms, and peace
Diplomatic responsibility and engagement with other states
- How to grant?
- It may be expressed clearly or through an act indicating declaration
- Complete and final:
- It is final, and once given cannot be withdrawn.
De Jure Recognition
De facto Recognition is provisional It is absolute recognition granted to a
recognition subject to fulfillment allstate which has attained all the attributes of
attributes of statehood. statehood,
possesses sufficient control with permanency.
De facto Recognition creates few essential It creates absolute rights for the parties
rights and duties for recognized andthereto.
recognizing states.
De facto Recognition does not create full It creates full diplomatic intercourse between
diplomatic intercourse between the parties. the parties.
The full diplomatic immunities are not Here in full diplomatic relations are granted
granted in De facto Recognition. to the recognized state.
The de facto recognized State or Only the de jure recognized State or
government cannot claim to receivegovernment can claim to receive property
property locally situated in the territory oflocally situated in the territory of the
the recognizing State. recognizing State.
In such a case the official visits and Only the de jure recognized State or
dealings may be subjected to limitations. government can represent the old State for the
purposes of State succession or with regard of
espousing any claim of its national for injury
done by the recognizing State in breach of
International Law.
Forms of Recognition:
- There are the following two forms for the declaration of recognition.
a. Express Recognition
2. Implied Recognition
Express Recognition:
- The declaration or notification by an existing state which purports the intention to
recognize a newly born state, the recognition is said to be express recognition. In
other words, when a formal and express declaration or statement is made and
published or sent to the opposite party, the recognition is said to be express
recognition.
- In the practice of States, this formal declaration may happen by either a formal
announcement of recognition, a personal message from the head of a State or the
minister of foreign affairs, a diplomatic note, or a treaty of recognition.
Implied Recognition:
- When the existing state shows its intention of recognition of a newly born state by
some acts, the recognition is said to be implied recognition.
- In other words, in the case of implied recognition, no formal statement or
declaration is to be made, rather the intention of recognition is to be collected by the
acts or transactions of the existing state. So, if such acts purport the intention of
recognition, it is said to be implied recognition.
- For example, the official congratulatory statements upon independence, the formal
establishment of diplomatic relations, and the conclusion of a bilateral treaty.
- The actions that do not conclusively imply recognition are the participation in a
multilateral treaty, the membership in international institutions, the common
participation in an international conference.
Withdrawal of Recognition:
Withdrawal of de facto Recognition:
- Withdrawal of de facto recognition is possible under international law only on the
ground that the recognized state has been failed to fulfill the pre-requisite condition
for statehood. In such a case, the recognizing state may withdraw from the
recognition by communicating a declaration to the authorities of recognized stated or
by a public statement.
Withdrawal of de jure Recognition:
- According to the strict letters of international law and by the virtue of some
conventions in this behalf, it is evident that the withdrawal of de jure recognition is
not valid in any case. But some jurists think that de jure recognition may be
withdrawn. Only those de jure recognitions may be withdrawn where a state
subsequently loses any essential of statehood. In such a case the state withdrawing
from recognition shall send his express intention to the concerned authority issue a
public statement to that extent.
Disabilities of unrecognised states:
- International Treaties:
- Un-recognized States cannot enter into treaties with the States which do not
recognize the legal existence of this State. Pakistan cannot come into treaty with
Isreal.
- Diplomatic Ties:
- The un-recognized States cannot enter into diplomatic relations with other States
because the diplomatic relations need acceptance of International Laws. Moreover,
the diplomatic relations will lead to certain obligations and rights, which need to be
fulfilled.
-
Court Proceedings:
- Unrecognized State cannot be a party to a claim in the court with the other State.
Non recognition leads to suppression of rights in context of claiming rights through
courts.
- Claim of Reparation:
- The State which has not been recognized by other States cannot claim reparation of
damages.
- Inability to claim Extradition:
- Unrecognized State is not able to claim extradition rights for criminals from other
States due to not signing the extradition agreements.
- Bank of China Vs Wells Foreign Bank & Union Trust Co.
- The case was an example where the conflict between The Republic of China
(Taiwan) and People’s Republic of China took place over a recovery of sum of
$650,000 due to non-recognition of the communist regime in mainland China.
Recognition of GOVERNMENTS:
- It implies the recognition of the government as the true and legitimate representative
of the people of the country. The need for this recognition arises because of changes
in government through constitutional procedures, military coups, and revolts. Such
changes certainly pose a threat not only for the country but also for the international
community.
- Why a State may refuse to recognize the Government of another State?
- A refusal to recognize is sometimes based on a belief that the new state or
government is not ineffective control of the territory which it claims.
Exception: Estrada Doctrine
- Because non-recognition of foreign governments has often been used as a mark of
disapproval, recognition of a foreign government has sometimes been misinterpreted
as implying approval, even in cases where no approval was intended.
- In order to avoid such misinterpretations, some states have adopted the policy of
never recognizing governments (although they continue to grant or withhold
recognition to foreign states). This policy originated in Mexico, where it is known as
the Estrada Doctrine.
1. Based on principle of non-intervention, self-determination and sovereignty.
Elements that determine governmental recognition:
a. Stability
b. Capacity to control the people of the territory
c. Willingness and capacity to carry out international obligations and commitments
Recognition of States v Recognition of Governments
- A state’s position as a member of the international community is not affected
by changes in its government. New governments inherit the same rights and
obligations under international law as their predecessors.
- A new government that comes to power through constitutional means, such as
an election, is officially recognized as the government of that state.
- A government that comes to power unconstitutionally, by means of a coup
d’état for example, can be recognized as the de facto government, even though it
may not be the de jure government, provided it has control over state practice.
- States that choose not to recognize a de facto government as the de jure one,
choose not to recognize the government in power; they do not deny the existence
of the state itself.
Recognition of Belligerency and Insurgency:
- There is a very minimal line of difference between the terms, "insurgency" and
"belligerent" and in almost all cases these are terms denoting the different stages of
the same process.
- The second half of the twentieth century has witnessed an increase in insurgent
activities in several countries around the world, for example, the Irish Republican
Army (I.R.A) in Northern Ireland, The Liberation Tigers of Tamil Eelam (L.T.T.E) in
Sri Lanka, the Indian backed insurgents in Balochistan, Pakistan.
- Insurgency means rebellion, riot, or mutiny by a portion of the citizens of a State
against the established government. It indicates armed struggle by dissident forces
against the established government in a state.
- On the other hand, Belligerent signifies a stage of the civil war in which there are
two contenders for power that can be placed on a platform and there is something like
a state of war, and not only civil conflicts. Despite conflicting opinions as to the exact
definition of "insurgency", there is a consensus that the insurgency can become
belligerency when insurgents occupy a significant portion of land.
Status of Insurgents and Belligerents in International Law:
- International law treats insurgencies and civil wars in the internal affairs falling
within the domestic jurisdiction of the State concerned and it is up to municipal law
enforcement to deal with it.
- Furthermore, belligerence has a formal status that implies rights and duties.
However, if the rebels are granted the status of belligerents, they shall become
subjects of international law and may be responsible for their actions.
The conditions for recognition of Insurgents:
- Some essential conditions for recognition of insurgency can be listed as follows:
a. The insurgents need to have control over a considerable part of the territory;
b. Most of the people living in the territory must support the rebels for their
own accord and not as a result of the enforcement actions taken by the
insurgents;
c. The insurgents must be able and willing to comply with international
obligations.
- Belligerency is the final category of a challenge to the established government,
recognized by customary international law, and implies a more serious conflict
than any rebellion or insurgency. It is also a concept more clearly defined in
international law than any of the other categories of conflict.
- It is “the acknowledgment of a legal fact that there exists a state of hostilities
between the two groups vying for power or authority; it is ... the recognition of the
existence of war.”
a. There should exist within the state status of armed conflict
b. The insurgents must administer and occupy a major portion of the national territory
c. The hostilities must be conducted in accordance with the rules of war and through
organized armed forces acting under responsible authority.
Legal consequences of recognition to belligerents:
- One of the legal consequences of the recognition is that the laws and customs of war
can be applied to the insurgents or belligerents and the legitimate government.
2. It includes Protection of civilians against internal armed conflicts and
3. Provision of rights to the belligerent’s soldiers against each other.
-
1. The protection and security of civilians against internal armed conflicts is dealt by
the Additional Protocol II to the Geneva Conventions of 1949, of 1977. This
convention sets standard regulations prohibiting the belligerents of intentionally
causing civilian casualties on the other side.
- Using poisoned weapons on arms as projectiles that cause suffering are prohibited.
- Article 4 of The Geneva prisoners of war convention, 1949, provides that troops of
organized resistance movements are entitled to be treated as ‘prisoners of war’
- The belligerents can have bilateral trade with the recognizing state
- The belligerents can enter into treaties with the recognizing state.
- A recognized belligerent state becomes entitled to sue in courts of the recognized
state.
- The recognized belligerents are not to be treated as pirates and rules of war become
applicable to them.
By the very limited nature and scope of insurgency as against belligerency, these
legal consequences are comprehensively applicable when the party is recognized as a
belligerent rather than an insurgent.
Conclusion
